CASE
NO. SA 28/2001

IN
THE SUPREME COURT OF NAMIBIA

In
the matter between:

And

CORAM: Strydom,
C.J., O’LINN, A.J.A. et Chomba, A.J.A.

Heard
on: 14/10/2002

Delivered
on: 21/05/2003

APPEAL
JUDGMENT

O’LINN,
A.J.A.: SECTION A: INTRODUCTION

This
is an appeal by the Government of the Republic of Namibia against a
judgment by Hannah J in the High Court of Namibia wherein the
plaintiff, one Wamuwi, claimed from the Government of Namibia, the
payment of damages in the amount of N$2 687 867 allegedly for breach
of contract.

Mr
Frank, S.C., appeared before us for the appellant, the Government of
Namibia and Mr Heathcote for the respondent, Mr Wamuwi.

At
the outset of the hearing, this Court was informed that Mr Wamuwi,
the respondent in the appeal, had died and that his wife, Marrah
Tjikasa Wamuwi, who is the duly appointed executor of the estate,
wishes to be substituted in her representative capacity for the late
Wamuwi as the respondent in the appeal. There was no objection to
this substitution and consequently the said executor was substituted
on the appeal record as the respondent in this appeal.

The
appellant was the defendant in the court a quo and the
respondent was the plaintiff. As there were also several other
applications in limine before this Court, I deem it more
convenient hereinafter to continue to refer to the parties as in the
court a quo when referring to the proceedings in the court a
quo, but to refer to the parties as appellant and respondent, when
referring to the parties in the appeal proceedings.

SECTION
B: THE POINTS IN LIMINE

1. The
application on behalf of respondent to strike the appeal from the
record because appellant/defendant did not file the record of appeal
timeously.

The
respondent relies on Rule 5 (6)(b) of the Supreme Court Rules for
submitting that the appeal is deemed to have been withdrawn. The
said rule reads as follows:

“If
an appellant has failed to lodge the record within the period
prescribed and has not within that period applied to the respondent
or his or her attorney for consent to an extension thereof, and given
notice to the Registrar that he or she has so applied, he or she
shall be deemed to have withdrawn the appeal.”

The
relevant facts are:

1. 
   It
   is common cause that the appellant was in default in filing the
   Court record. The record was due to be filed in terms of the
   Supreme Court Rules on or before 15^th March 2002. It was
   only filed on the 26^th June 2002, more than three months
   late.

   
   

2. 
   However,
   the appellant did apply to the attorney of respondent before the due
   date on 15^th March 2002 for an extension of the period
   and respondent consented that the record be filed on or before 22
   March 2002. The appellant’s legal representative, the
   Government-Attorney, gave notice on 22 February 2002 that consent
   had been obtained in terms of Rule 5 (6)(b) and specified that the
   extension granted is until 22 March 2002.

   
   

3. 
   Nevertheless,
   as indicated supra, the record was only filed on the 26^th
   June 2002, more than three (3) months later than the extension date.

   
   

4. 
   In
   respondents heads of argument filed on 30^th September
   2002, respondent took the point as an in limine point that
   the appeal must be deemed to have lapsed in terms of the said Rule 5
   (6)(b) and pointed out that no explanation has been forthcoming from
   the appellant or its legal representatives.

   
   

Only
thereafter, on 9^th October, five (5) days before the
hearing of the appeal, the Government-Attorney, filed an application
for condonation of the Appellant’s failure to file the record
timeously. This application in addition asked for:

“2. Condoning
Appellants filing of an incomplete record;

3. Permitting
the Appellant to remove the complete p. 132 in Vol. 1 of 9 of the
record and to substitute therewith pages marked 132 (a), 132 (b) and
to insert the missing pages 113 and 137 in Vol. 4 of 9 of the
record.”

There
was no objection to paragraphs 2 and 3 of the relief claimed, the
problem was with paragraph 1 of the relief applied for.

In
view of the fact that the appellant in the first instance did apply
to respondent for an extension and was granted such extension, Rule 5
(6)(b) had been complied with in regard to the initial delay.

In
Mr Goba’s affidavit in support of the application for condonation,
he alleged:

“8. Thereafter,
I routinely chased up Global Click by telephone and personal
visitations to finalise the record until sometime during the middle
of March when they informed me that the record would not be completed
by 22^nd March 2002.

9. I
once again wrote to Messrs Shikongo appraising them of the position
and seeking a further extension of the time period. I sent the
letter by fax and mail. However, I did not receive any reply thereto
up to the time the record was provided and filed with the Court. I
attach hereto a copy of the relevant letter and fax confirmation as
Annexure RHG 3 (i) and (ii). The letter in question was copied to
the Registrar of this Honourable Court.

10. Although
I did not receive a written reply to the said letter Ms Pearson Le
Roux did contact me once telephonically while the late Respondent was
in her office enquiring about the status of the record. When I
informed her that it was still incomplete she requested me to
maintain pressure on Global Click to complete the compilation of the
record to which I agreed.

11. I
am aware that she also independently pursued the matter with Global
Click.

12. I
furthermore recall an occasion when I ran into her outside the High
Court building and when we again discussed the dilatory conduct of
Global Click in compiling the record.

13. The
record finally became available during June 2002 and after checking
through all the copies and volumes with the assistance of law
students attached to the Office of the Government-Attorney for
errors, inaccuracies, missing pages etc the record was filed on 26
June 2002.

14. The
Respondent’s legal practitioners were at all times aware that the
delay in filing the record was due solely to the failure by Global
Click to complete the preparation of the record on time. More
specifically they did not at any stage refuse to grant an extension
after the 22^nd March 2002.

15. I
wish to state further that even when the record became available it
contained errors some of which were picked up during the checking
process carried out in the Appellant’s legal practitioners offices
and corrected. In the rush to ensure that no further delay was
occasioned in respect of the filing of the record other errors were
not picked up in some of the copies such as the copies submitted to
Appellant’s counsel. Counsel detected errors and missing pages
which he drew to my attention. Consequently, I visited the Supreme
Court and caused certain volumes to be retrieved for my personal
inspection. Some of the errors noted in Counsel’s copies were not
apparent in the copies filed with the Court while those that were
observed are the subject of the application for condonation filed
herein.”

In
support of the allegations in paragraph 9, a copy of a letter to
respondent’s attorneys dated 25^th March and a fax
confirmation of receipt thereof was attached. The said letter reads
as follows:

“We
refer to our letter of the 15^thultimo and your
reply dated 21^st February 2002. We regret to advise that
as of 22 March 2002 the transcript of the record was not yet
completed.

As
this is a circumstance beyond our control we respectfully seek your
further indulgence.

R
H Goba,

For
Government Attorney!”

Ms
Tanja Pearson, on behalf of respondent’s attorneys, deposed to an
opposing affidavit but did not reply at all to paragraphs 8, 9 and 10
of Goba’s affidavit.

It
follows then that the allegations in the said paragraphs 8, 9, 10
must be deemed to be admitted, including the crucial fact that
appellant did ask respondent’s legal representative for a further
indulgence and explained that Global Click was unable to have the
record ready by the 22^nd March.

The
allegation in paragraph 5.4 of plaintiff’s heads of argument on
appeal is therefore partly incorrect insofar as it was argued:

“Subsequent
to that date (i.e. 22 March 2002), no further document has been
filed, and the plaintiff did not grant any further extension.
Nevertheless, the record was only filed on the 26^th June
2002 (Annexure 2 hereto). The delay as from the end of March is
unexplained.”

Although
the respondent did not expressly grant a further extension, such
extension was sought in writing and to that request, no written or
oral express refusal was communicated to appellant’s legal
representative. This may have been regarded as tacit consent. It
is, however correct to say that Mr Goba failed to give notice to the
Registrar in terms of Rule 5 (6)(b). Furthermore, Mr Goba did
explain the need for a further extension, although Ms Pearson on
behalf of plaintiff in her affidavit filed in opposition on 30^th
September 2002, claims that appellant’s legal representatives were
in wilful default and denies that Global Click was responsible for
the delays. In support of Ms Pearson’s stand the affidavit of Mr
Böck of Global Click was annexed, together with documentation
indicating when instructions were received and when Global Click had
completed the record.

Mr
Goba, in a further affidavit in reply, contests the latter
allegations by Ms Pearson and Böck and repeats his denial of any
fault on his part, particularly, wilful default.

It
is not possible to decide the correctness of these allegations and
counter allegations on affidavit and it is indeed not necessary. It
appears to me that appellant’s legal representatives did not comply
fully with the rules of Court in regard to the record. However,
there is no room for the strict application of the deeming clause in
Rule 5 (6)(b). It must have been quite clear to all interested
parties that the appellant at no stage abandoned its appeal and had
no intention to do so.

Even
on the assumption that appellant was remiss in not fully complying
with the rules of Court, this Court should give due weight to the
question of whether or not there are reasonable prospects of success
on appeal.

I
believe there are such reasonable prospects, as is apparent from the
discussion of the merits hereinafter dealt with and the conclusion
reached. It follows that the appellant must be granted condonation
for the late filing of the record.

2. The
question whether or not the decision of the court a quo was a
judgment or/order which was appealable without leave.

This
point was only raised in the appellant’s heads of argument and not
raised by or on behalf of plaintiff/respondent. The reason for Mr.
Frank raising and arguing this point was that the court a quo
had decided only the issue of liability and not the quantum of
damages, as agreed upon by the parties in accordance with Rule 33(4)
of the Rules of the High Court.

The
appellant noted the appeal subsequent to the decision on liability
and without waiting for the quantum of damages to be decided before
noting an appeal. No leave to appeal was requested.

The
question consequently arose whether or not the decision of the Court
on liability was a judgment or order with final and definitive
effect, entitling the appellant to appeal as of right and without the
need to apply for leave to appeal as would be required when the
decision of the Court is a so-called “simple” interlocutory
order.

This
issue has been raised and decided on in recent decisions of this
Court.¹

There
are also several relatively recent decisions of the Supreme Court of
Appeal in South Africa and its predecessor indicating a less rigid
approach than in the past.²

I
am satisfied that in a case like the present, the decision of the
Court on the issue of liability and the costs in regard thereto is a
“judgment or order” with final and definitive effect in regard to
an important part of the relief claimed and as such the appellant has
a right of appeal in accordance with Section 18 of the High Court Act
of Namibia, Act No. 16 of 1990 as amended.

3. Appellant’s
application on appeal for amendments to its plea.

The
application for amendment is as follows:

(i) By
the insertion of a new subparagraph 3.1 to the main paragraph 3
thereof to read as follows:

“insofar
as it may be found that defendant did enter into an agreement as
alleged, defendant avers that the agreement was subject to the
condition that funding would be provided by UNICEF to defendant to
execute the agreement which condition failed.”

(ii) By
the insertion of a new subparagraph 3.2 to the main paragraph thereof
to read as follows:

“Insofar
as it may be found that plaintiff did in fact enter into an agreement
as alleged then defendant avers that such an agreement was invalid in
that the tender process provided for in the Tender Board of Namibia
Act, Act No. 16 of 1996 was not complied with.”

It
seems to me that if the appeal must succeed on the pleadings as it
stands, it would not be necessary to decide the application for
amendment. I find it therefore convenient and appropriate to first
consider whether or not the appeal should succeed on the merits on
the basis of the pleadings at the time of judgment in the Court a
quo.

SECTION
C: THE APPEAL ON THE MERITS ON THE BASIS OF THE PLEADINGS AT THE
TIME OF JUDGMENT IN THE COURT A QUO

The
particulars of claim read as follows:

“1. The
PLAINTIFF is JOMO AIBU WAMUWI, an adult male person and
coordinator of the Maximo-Sauzanda Cultural Group residing at 83 Diaz
Street, Windhoek.

2. The
DEFENDANT is THE GOVERNMENT OF THE REPUBLIC OF NAMIBIA,
represented herein by the Minister of Health and Social Services and
the Minister of Basic Education and Culture, c/o Government
Attorneys, Sixth Floor, West Wing, Government Building, Robert Mugabe
Avenue, Windhoek.

3. During
September and/or October 1998, the Plaintiff, acting in person and
the Defendant, then and there represented by A Xoagub entered into an
oral agreement alternatively partly written and partly oral
agreement, with the following explicit, alternatively implied in the
further alternative tacit terms:

3.1 the
Plaintiff had to undertake a country-wide tour to create HIV/AIDS
awareness and enable capacity building at workshops and drama
performances at 1,400 schools in Namibia;

3.2 the
Plaintiff had to render consultancy services in the form of drafting
a HIV/AIDS national policy document, writing syllabi for inclusion in
the current school syllabi, designing posters and educational
materials on HIV/AIDS;

3.3 for
the services rendered as envisaged in paragraph 3.1 the Plaintiff
would be remunerated at the rate of N$2,800.00 per performance per
school and for the services rendered as paragraph 3.2 the Plaintiff
would be remunerated at a fair and reasonable rate, which payments
would be paid by the Defendant to the Plaintiff alternatively, would
be paid by UNICEF for and on behalf of the Defendant;

3.4 the
Defendant would co-operate with the Plaintiff in order to comply with
his obligations in terms of the agreement, inter alia, by
informing the schools to facilitate the performances.

4. The
Plaintiff complied with all his obligations in terms of the agreement
alternatively at all relevant times, tendered to comply with his
obligations in terms of the agreement.

5. Since
December 1998 the Defendant repudiated the agreement and/or breached
the agreement by refusing the Plaintiff the opportunity to continue
with his obligations in terms of the agreement.

6. Despite
demand by the Plaintiff to the Defendant to rectify the said breach
and/or repudiation, the Defendant refused to do so which entitled the
Plaintiff to accept the repudiation and/or cancel the agreement which
the Plaintiff did alternatively the Plaintiff hereby accepts the
repudiation and/or hereby cancels the agreement.

7. As
a result of the Defendant’s breach of the agreement the Plaintiff
suffered damages in the amount of N$2, 687, 867.00.

WHEREFORE
Plaintiff claims against the Defendant:

1. Payment
in the amount of N$2, 687, 867.00.

2. Interest
on the aforesaid amounts at the legal rate from date of judgment to
date of payment.

3. Costs
of suit.

4. 
   Further
   and/or alternative relief.”

   
   

The
defendant pleaded as follows:

“1. AD
PARAGRAPHS 1 AND 2 THEREOF

The
contents hereof are admitted.

2. AD
PARAGRAPH 3 THEREOF

2.1 The
Defendant admits that in or about July 1998 an agreement was entered
into by and between Plaintiff and the Ministry of Health and Social
Services, the Ministry of Basic Education and Culture and UNICEF in
terms of which Plaintiff would undertake Aids Awareness
initiatives at selected schools in Namibia through a cultural group,
Maximo-Thousand, from Zambia.

2.2 The
project would be facilitated through the National Aids Control
Program (NACP) of the Ministry of Health aforesaid.

2.3 Specifically,
31 performances comprising of 15 capacity building workshops and 16
drama performances would be carried out.

4. 
   Plaintiff
   would be paid a fixed rate of $2 800,00 per performance.
   

   
   

5. 
   Pursuant
   to the agreement the United Nations Children’s Fund (UNICEF) was
   approached for funding through the NACP.

   
   

2.6
UNICEF agreed to fund the initiative and paid a total of $130
000,00 being the full amount in terms of the agreement through NACP
to the Plaintiff.

2.7
Plaintiff partially carried out his obligations in terms of the
agreement and was paid in full through the NACP by UNICEF.

2.8 When
UNICEF paid out the full amount it was unaware that the Plaintiff had
partly carried out his obligations.

2.9
UNICEF later carried out an audit which revealed that the Plaintiff
had not fully complied with the agreement and demanded a refund of
part of the payments.

3. 
   Save
   as aforesaid Defendant denies each and every allegation herein
   contained as if specifically traversed.

   
   

3. 
   AD
   PARAGRAPH 4 THEREOF
   

   
   

Defendant
repeats paragraph 2.

3. 
   AD
   PARAGRAPH 5 THEREOF
   

   
   

The
Defendant has no knowledge of the allegations, does not admit them
and puts the Plaintiff to the proof of all his allegations.

5.
AD PARAGRAPH 6 THEREOF

The
Defendant repeats paragraph 2 and 4.

6. AD
PARAGRAPH 7 THEREOF

In
the premises the Defendant denies each and every allegation herein
contained as if specifically traversed.

WHEREFORE
DEFENDANT PRAYS THAT PLAINTIFF'S ACTION BE DISMISSED WITH COSTS.”

At
the outset I regard it necessary to point out that the pleading in
this action, both the particulars of claim and the plea, are vague
and indeed embarrassing and failed to pinpoint the real issues
between the parties. To mention only a few features:

The
particulars of claim allege:

“During
September and/or October 1998, the plaintiff acting in person and the
Defendant then and there represented by A Xoagub and/or Kahikuata
entered into an oral agreement alternatively partly written and
partly oral agreement, with the following explicit alternatively
implied in the further alternative tacit terms.”

Nowhere
was it specified which part was partly oral and which part was in
writing and no writing was attached which allegedly constituted part
of the contract. This uncertainty was further highlighted by the
allegations that the terms of this agreement were either explicit or
implied or tacit. Although this type of pleading is permissible the
first impression from this is that the plaintiff and his legal
representative were uncertain and even confused about what
plaintiff’s case was.

No
further particulars were requested on behalf of defendant in order to
narrow down the issue between the parties. Defendant did not
expressly deny the “agreement” alleged by plaintiff but instead
said that it admitted plaintiff’s allegation regarding the
conclusion of an “agreement” but then alleged an agreement
completely different in regard to the time concluded and the terms of
such agreement.

In
regard to this agreement which the defendant “admitted”, it was
also claimed by defendant that the agreement was carried out by the
plaintiff and that defendant was paid a total of N$130 000.00 being
the full amount payable in terms of the agreement. The defendant
further stated that this payment was made by UNICEF i.e. the United
Nations Children Education Fund through the National Aids Programme
(NACP) of the Ministry of Health.

Again
there was no request for further particulars or an attempt made to
clear up the ambiguity on behalf of plaintiff.

At
best for the parties, it can be implied that defendant denied the
agreement alleged by the plaintiff and pleaded the conclusion of a
different agreement and that full payment had been made in terms of
that agreement by UNICEF in accordance with its Youth Health
Development Programme.

An
important feature of the plea was that Defendant alleged that the
agreement it “admitted” was between “Plaintiff and the Ministry
of Health and Social Services, the Ministry of Basic Education and
Culture and UNICEF. UNICEF accordingly was alleged to be one of the
parties to the agreement.

Although
defendant in paragraph 2.3 of its plea stated that “Save as
aforesaid Defendant denies each and every allegation herein contained
as if specifically traversed, it did not specifically deny
plaintiff’s allegation that in entering into the agreement as
alleged by plaintiff, defendant was represented by A Xoagub and/or
Kahikuata. Although it is a principle of pleading that a denial of
authority of an alleged agent “must be specifically and
unambiguously pleaded”, the party who wishes to rely on agency must
in the first place “allege and prove the existence
and scope of the authority of the alleged agent.”³

In
this case the plaintiff failed to allege that Xoagub and/or Kahikuata
were duly authorised, only that they “represented the
defendant.” Furthermore, this is another example of the ambiguity
in plaintiff’s particulars of claim, because the claim is that it
is either Xoagub or Kahikuata or both of them who represented
the Ministers, who in turn represented the government.

In
the light of such ambiguous and defective pleading, it is indeed
doubtful whether the defendant could be prevented in the trial from
denying the so-called representative’s authority to enter into the
agreement as alleged by plaintiff and denied by defendant.

It
is not necessary to decide this issue finally in this judgment
because there can be no doubt that the plaintiff had to prove at the
trial the agreement it alleged, the parties to that agreement and the
obligations undertaken by the respective parties.

Plaintiff
could only succeed if he succeeded in proving that:

1. A
final agreement was reached amounting to a binding legal contract,
giving rise to legal relations.⁴

2. That
this contract was between the Government of Namibia, represented by
its Ministers, and the plaintiff. Furthermore in this case, that
UNICEF was not a party to such contract and that the Government of
Namibia was responsible for providing the funds and paying the
plaintiff and not UNICEF.

In
this regard the plaintiff’s allegation in its particulars of claim
is once more in the alternative, where it is alleged in paragraph 3.3
that the payments due “would be paid by the Defendant to the
Plaintiff, alternatively, would be paid by UNICEF for and on
behalf of the Defendant.

It
follows that plaintiff could not succeed on the alternative basis,
even if proved because it did not allege that UNICEF was a party to
the contract and did not join UNICEF in the action, notwithstanding
the fact that defendant pleaded that UNICEF was one of contracting
parties. Furthermore plaintiff could not succeed if it failed to
prove that UNICEF was not a party.

The
learned judge a quo in his judgment correctly distinguished
between an agreement in July 1998 in terms of which plaintiff
performed and for which he was paid and a further alleged agreement
in September/October 1998. The learned judge a quo correctly
states:

“The
defendant denies entering into a further September/October agreement
and that is the essential issue in this case. Was there a further
agreement.”

This
is the issue as it crystalized in the pleadings and in the evidence
in the course of the trial. It must be noted however that in
plaintiff’s particulars of claim there is no indication of a July
agreement and a further agreement in September/October. Plaintiff
only averred one agreement in September/October and this alleged
agreement was denied by the defendant. It is this agreement which
plaintiff had to prove.

The
defendant’s case as it developed in the course of the trial was
that such an agreement was discussed between Xoagub, Kahikauta and
representatives of UNICEF but a final, binding contract was never
agreed upon. The Court, however found that the plaintiff succeeded
in proving the contract alleged by him; that the agreement was
breached or repudiated by defendant as a result of which plaintiff
suffered damages.

Central
to this judgment were the following findings by the Court.

(a) “There
was a concluded agreement between plaintiff and defendant.”

(b) “There
never was a question of UNICEF being party to the agreement.”

Although
this Court must give due weight to the credibility findings of the
trial Court in regard to witnesses and findings of fact based
thereon, this Court may come to a different conclusion if the Court a
quo misdirected itself.

For
the finding that there was a concluded agreement between plaintiff
and defendant as alleged by plaintiff, the Court relied heavily on
the testimony of Kahikuata, who was a Chief Education Officer in the
Ministry of Basic Education and Culture.

According
to this evidence, so the Court reasoned, Kahikuata “obtained
approval for the project from the Ministry of Health, UNICEF and his
own Permanent Secretary. Everything was agreed subject to the Annual
Review. The Annual Review was held and the principle was agreed that
there should be more workshops and drama. Nothing further stood in
the way of the implementation of the project. As Kahikuata said and
I accept his testimony, everything was in place and funds were
available. Had it not been for UNICEF’s unfortunate intervention
based on a misapprehension concerning the July project, the main
project would have commenced in January 1999.”

With
all due respect to the learned trial judge, the above findings and
reasoning are flawed and constitute misdirections.

It
is evident from the judgment itself that the conclusion that “the
funds were available” is derived from another part of the evidence
of Kahikuata. This appears in an earlier part of the judgment where
the Court said:

“Kahikuata
said that the funds were available for the main project and his
Ministry agreed to the plaintiff’s project proposal. His permanent
secretary knew of the agreement. If it had not been for
UNICEF letter dated 18^th December the circular which he
had drafted for the Permanent Secretary’s signature would have gone
out and the project would have taken place. The only reason it did
not was the arrival of this letter. Kahikuata agreed that the
defendant was in breach of its agreement with the plaintiff.”

For
the repeated statements that the funds were available, reliance was
placed by the Court on the evidence of Kahikuata but this evidence
appears to be based on a misconception of what Kahikuata had said in
a minute which he had prepared for the Permanent Secretary’s
approval and signature dated 21^st September 1998.

The
Court further held that “the minute pointed out that funds in the
region of 2 million were available in the Youth Health and
Development Programme.”

It
was apparently misunderstood or ignored by Kahikuata as well as the
Court that the Youth, Health and Development Programme, was a
programme of UNICEF, controlled by UNICEF. The funds were those of
UNICEF, controlled by UNICEF and not by the Namibian Government or
its Ministries. It is apparent from the record and the available
letters and documents, that UNICEF would only make available such
part of the funds available for its Youth Health and Development
Programme if UNICEF had approved of a project. Even then it was
clearly the practice and the understanding by all concerned, that
UNICEF would monitor the project, including whether or not the
projected work had been properly executed and the monies made
available properly spent.

There
was therefore not one shred of evidence that the programme prepared
by plaintiff would be financed by the defendant, i.e. the Namibian
Government, from funds made available to its Ministries and/or the
National Aids Programme controlled by the Ministry of Health and
Social Services and for which programme Mr Abner Xoagub was the
Programme Manager.

It
was incorrect to suggest and more so to find that the N$4.2 million
was available for the Namibian Government to spend at its behest or
even worse that of its officials on projects favoured by some of its
officials, but not agreed to by UNICEF.

UNICEF’s
so-called “unfortunate intervention” as found by the Court was
rather part of its necessary functions and responsibility to the
original donors to approve and monitor projects for which the funds
are made available, once the project and the spending thereon was
properly authorized by it.

It
is clear from Kahikuata’s testimony and the Court’s own
acceptance thereof that quite apart from the approval by UNICEF,
Kahikuata had at least to get the approval of the Permanent Secretary
of his own Ministry and that of the Ministry of Health and Social
Services. The allegation in paragraph 1 of the plaintiff’s
particulars of claim that the defendant was represented in the action
by the Minister of Health and Social Services and the Minister of
Basic Education and Culture but that defendant government was
represented by a Mr Xoagub and/or Kahikuata when entering into a
contract with plaintiff is a complete misnomer from the start,
considering that these persons were not even Permanent Secretaries
who may represent the Ministers if the Minister’s functions are
duly delegated to them.

But
be that as it may, the fact is that at best for plaintiff, the
permanent secretaries were approached for their approval and their
approval was the minimum required to bind the Government,
particularly when it concerns an activity or programme where millions
of rands of taxpayers monies had to be spent in terms of an approved
budget.

This
is so because it is a notorious fact that taxpayer’s monies can
only be expended by Government in accordance with an approved budget
and the Cabinet and its individual Ministers are responsible for
administering and executing the functions of government.⁵

It
is also a notorious fact that permanent secretaries of ministries are
again responsible for the everyday running of the Ministries
administration. Neither Mr Xoagub nor Mr Kahikuata ever testified or
even suggested that they fulfilled the functions of the Ministers or
of the permanent secretaries of the Ministries or that they were
delegated to do so or that the Government had budgeted to spend the
monies required for the programme to be executed by plaintiff.

The
question which then arises is not whether or not Mr Xoagub and/or
Kahikuata approved the project, but whether or not at least the said
permanent secretaries approved.

Consequently
it is not enough for Mr Kahikuata to say that his permanent secretary
“knew of the agreement” and for the Court to rely on such
evidence. Mr Xoagub and Mr Kahikuata never contended the contrary.

The
documentary evidence:

In
the minute of the 21^st September referred to by the Court,
Kahikuata asked for the secretary’s “involvement and
authorization so that we can request our … partners
to release funds for this critical issue to be addressed
appropriately.” (the emphasis is mine).

It
was also in this minute where the allegation of the availability of
the N$4.2 million was made.

In
a following letter dated 23 September, by Ms Katoma in her capacity
as permanent secretary of the Ministry of Basic Education and
Culture, wrote to “the Country Representative U.N.D.P, Windhoek,
for attention Ms Mary Delaney, wherein the writer after setting out
the need for action on an HIV/AIDS programme in schools, concluded:

“The
purpose of writing you this letter is simply requesting you to make
available to us as a Ministry of Education and Culture financial
resources to move a step forward in our endeavour to implement our
desired goal towards integrating HIV/AIDS as part of our school
curriculum as incompassed in the Youth Health Development Programme
Plan of Action 1997-2001.”

To
this letter Ms Delaney of UN AIDS (the United Nations Programme on
HIV/AIDS) replied in a letter dated 5/10/1998 that “with regard to
the proposal for additional support for a school HIV/AIDS campaign
(prepared by Mr Jomo Aibu Wamuwi), I have consulted with my
colleagues at UNICEF, one of UNAIDS’ six co-sponsors. They have
updated me fully on the status of the Youth Health Development
Programme (YHDP), to which MBEC (Ministry of Basic Education and
Culture) is a key partner. In addition we have held several meetings
to discuss the proposal, the YHDP with Wamuwi and Mr J Kahikuata,
MBEC’s special education officer.”

After
saying that the UN “welcomes very much your call for expansion and
is willing to consider proposals for complementing funding” and
dealing with further activities in regard to the Youth Health
Development Programme the writer said: “After intensive internal
consultation, we feel that before funds allocated to YHDP are
diverted to unplanned activities on relatively short notice, we
should take advantage of the upcoming YHDP Annual Review to sit
together to discuss progress, constraints and options for improving
efforts already underway….”

The
next letter on behalf of UNICEF was dated 18^th December
1998 wherein a Mr Palm on behalf of UNICEF complained that Mr Wamuwi,
according to investigations done by them, have not properly executed
its contract, (i.e. the first one) and demanded repayment of half of
an amount of N$65 000 already paid to him. It is this letter which
the Court a quo referred to as the “unfortunate
intervention.”

However
it was now clear that UNICEF would no longer consider funding the 2^nd
Wamuwi programme and the secretaries of the two ministries
involved now also put the matter on hold and took no further steps to
implement the programme proposed by Mr Wamuwi.

As
far as the documentation made available during the trial is
concerned, there was no correspondence or other document indicating
that UNICEF or UNAIDS or any United Nations entity had agreed to the
implementation and funding of the 2^nd Wamuwi programme.

From
the above documentation it is clear that it is highly unlikely that
either the Government through its Ministers or their permanent
secretaries could have and would have entered into an agreement of
the character alleged by the plaintiff without the consent of any one
or more of the mentioned UN agencies.

The
Court in its judgment also referred to the circular dated December 8
prepared by Mr Kahikuata for circulation to regional education
directors and principals of schools to prepare for implementation of
the second Wamuwi programme.

The
circular purported to be one by the Permanent Secretary and/or the
assistant permanent secretary. The latter however refused to sign
the letter. In a subsequent memorandum by the Acting Permanent
Secretary to Mr Kahikuata quoted by the Court, the said acting
permanent secretary stated:

“To
maintain the Ministry’s excellent relation with UNICEF as a major
donor, I remain reluctant to sign the circular and commit the
Ministry to this programme, if Mr Wamuwi is involved…”

(My
emphasis added.)

Referring
to a statement in the aforesaid circular dated the 8^th
wherein Kahikuata referred to an HIV/AIDS expert (consultant) who
allegedly had been appointed by the Ministry of Health and Social
Services, the acting permanent secretary posed the question: “Please
clarify who the consultant is.”

The
Acting Permanent Secretary in this memorandum stated inter alia
that he was reluctant to commit the Ministry to the programme.

This
circular indicated again that Kahikuata accepted that the Permanent
Secretary had to agree to and authorize the programme. The query
about the identity of the “consultant” again indicates that the
Permanent Secretary did not know or at least purported not to know
the identity of the consultant and that the Ministry had not
committed itself to the programme at anytime.

It
was noteworthy that no written letter or document was produced
indicating that the Permanent Secretary of the Ministry of Health and
Social Services had agreed to the project.

Xoagub,
the Programme Manager or Coordinator of the National Aids Programme
controlled by the Ministry of Health and Social Services, testified
that plaintiff had fulfilled his obligations in terms of July
project. As to the second project however he said that there was no
agreement with his Ministry. He just gave his blessing to the
proposal.

It
was clear that Xoagub also accepted that his Ministry had to agree to
a contract such as the one alleged and that it did not agree.

According
to plaintiff’s particulars of claim, Xoagub represented the
Minister of Health and Social Services. It is clear that he did not
represent the Ministry and did not purport to consent to the
agreement as alleged by plaintiff.

Kahikuata
may have solicited Xoagub’s cooperation and support for the second
programme but it does not go further. Xoagub’s testimony in regard
to the second contract is not only probable but undeniable. The
Court did not have any reasonable ground for its finding that
Kahikuata also obtained approval for the project from the Ministry of
Health. Kahikuata could not in any conceivable manner have legally
represented the Ministry of Health and Social Services. He did not
testify that he could do so.

If
anyone was positioned to obtain the approval of the Ministry of
Health, it was Xoagub, not Kahikuata, because Xoagub was at least the
programme manager or coordinator of the National Aids Programme which
resorted under the Ministry of Health, not the Ministry of Basic
Education.

This
minute was addressed by Kahikuata to the Permanent Secretary:
Ministry of Health and Social Services as pointed out by the Court a
quo.

It
seems that Xoagub was bypassed by Kahikuata in the effort to get the
authorization of the Ministry of Health.

The
Court correctly comments that in this letter it was envisaged that
the implementation of the programme would begin in January, 1999.
But the point is that there is no record of a written response by the
secretary of the Ministry of Health to approve and also no clear
evidence that the secretary for Health did at any stage approve or
purport to approve.

When
referring to the “Annual Review” the Court stated inter alia
that “the principle was agreed that there should be more
workshops and drama.” (My emphasis added.) But that is a far cry
from holding that a final binding contract with legal obligations had
been agreed to by relevant and necessary parties. It certainly did
not mean that the Government had bound itself to implement the
programme and to pay for it.

As
I have indicated the Court placed great reliance on the evidence of
Kahikuata. On the issue of who were the relevant and necessary
parties, Kahikuata’s own letters indicate that the contract, if
any, was between the aforesaid two Ministries, UNICEF and the
plaintiff. It also shows that not only was the Ministry of Health a
necessary party, but UNICEF was also a necessary party.

In
a letter as late as November 23 by Kahikuata to the said Ministry of
Health and Social Services, Kahikuata referred to the
Government/UNICEF review meeting which took place on the 29^th
October 1998 and various resolutions passed there. He then
specifically states: “As resolved at the Government/UNICEF annual
review meeting, you are required to solicit financial resources
from the I.E.C and UNICEF country project funds to enable this
programme to be implemented.” (My emphasis added.)

I
must point out that plaintiff’s particulars of claim alleging that
the agreement relied on was concluded in September/October 1998 –
but here, on November 23, 1998, Kahikuata requested the Permanent
Secretary of the Ministry of Health and Social Services, to take
initiatives to obtain funding, from I.E.C. and UNICEF. This is
significant considering that Kahikuata already stated in a letter to
the Permanent Secretary of the Ministry of Health and Social Services
dated 21^st September 1998 that the money was available and
the Court found that it was. Kahikuata in this letter of the 23^rd
September 1998 to the country representative of U.N.D.P. inter
alia stated:

“The
Government of Namibia in conjunction with the UNICEF drafted a Youth
and Development (HIV/AIDS) programme plan of action in May, 1995…
The purpose of writing you this letter is simply requesting you to
make available to us as a Ministry of Basic Education and Culture
financial resources to move a step forward in our desired goal
towards integrating HIV/AIDS as part of our school curriculum as
encompassed in the Youth Health and Development Programme Plan of
Action 1997-2001.”

Already
in a letter/circular by Kahikuata dated July 21, 1998 addressed to a
school principal in regard to the so-called first programme,
he stated:

“The
Ministry of Health and Social Services/MBEC/UNICEF – contracted a
specialized Community Drama Group from Zambia for the purposes of
holding demonstration shows/workshop on HIV/AIDS in Namibia.”

In
letters to Regional Directors of Education, Kahikuata on July 22
referring to the first programme, stated:

“These
events have been made possible by the sponsor through the NACP
(MOHSS) UNICEF and MBEC. (MOHSS is the acronym for the Ministry of
Health and Social Services; MBEC for the Ministry of Basic Education
and Culture. NACP is probably the abbreviation for National Aids
Policy Coordinator, i.e. Mr Xoagub).”

In
a letter on behalf of the National Aids Control Programme also dated
21 July Mr Xoagub in his capacity as Programme Manager, wrote to the
Programme Officer of UNICEF, in which he thanks UNICEF for a fax in
which the writer on behalf of UNICEF “outlined detailed
requirements that the group should fulfil before they are advanced
with the money for the above project.” The “above project” as
it appears from the letter is the “Project proposal for holding
capacity building workshops.”

Xoagub
mentioned that the NBC will be asked to make a recording of one of
the performances and that the NBC, NACP and UNICEF “will have joint
copyright to the video.”

This
letter makes it clear that Xoagub clearly accepted that there were
requirements laid down by UNICEF and that it was also necessary to
report to UNICEF.

Furthermore,
this letter clearly reflects the process of obtaining funds and that
UNICEF, not the Namibian Government, will supply the finance; that
UNICEF was a full partner and contracting party in the contract with
the plaintiff in regard to the first programme.

The
letter also shows that the agreed contribution by UNICEF for the said
first programme was N$130 000. Another significant fact appearing
from this letter is that as far as the National Aids Programme
managed by Xoagub on behalf of the Ministry of Health was concerned,
the only agreement at that stage related to a programme where N$130
000 would be paid to the Maximo and Zauzanda Cultural Group. Mr
Wamuwi was described as the “Coordinator of the Cultural Group”
in Kahikuata’s letter also dated 21 July 1998.

It
is to be noted that in a later letter by Xoagub to the project
officer of UNICEF’s Youth Health and Development Programme, Mr Rick
Olsen, dated 21.8.1998, Xoagub asked for “reimbursement of the
remaining N$65 000 which the Maximo and Zauzanda group are due for
payment…”

To
return to the letter dated 18.8.1998: In the last paragraph Xoagub
points out: “Finally I would like to thank you most sincerely for
your cooperation in the ending programme and I would like to request
you to expedite the transfer of the remaining N$65 000 to facilitate
the payment to the visiting cultural group to enable them depart
for their home country in conformity with the thirty (30) days
statutory requirements which was allowed for the group to stay and
conduct their work in Namibia.” (My emphasis added.)

In
a further letter dated 21 August by Xoagub to the same project
officer of UNICEF, he said: “Please be informed that the group’s
statutory mandate to stay in Namibia, expires on 22 August. I seek
your involvement to expedite the payment to enable the group start
their journey to their home country before the expiry of the
mandate..” (my emphasis added)

The
above quotations clearly indicate that at the time, as far as Xoagub
was concerned, there was no arrangement, agreement or contract for
the group to undertake a country-wide campaign for a remuneration of
N$2 800 per school for 1400 schools during 1999.

Plaintiff
did not produce any letters or other documents showing an agreement
between the Ministry of Health and plaintiff wherein plaintiff would
perform at 1400 schools at N$2 800 per school during 1999.

However,
after the dispute arose Xoagub wrote to the country representative of
UNICEF in regard to the demand by UNICEF for the repayment of N$33
600 paid out for performances “by the Maximo-Zauzanda Drama Group
under director Mr Jomo Aibu Wamuwi.”

In
this letter the crucial rôle of UNICEF in the first programme
is once again penned. In the letter Xoagub refers e.g. to:

“The
forms of reference drafted by yourselves and provided to guide the
group’s work set out preconditions for which money payable
to the group would be released.”

If
they set out these preconditions for the first programme for which
only N$130 000 would be expended one would expect that for a country
wide programme for which over N$4 million would be required, at least
similar conditions would apply and documentation would exist to prove
such a contract.

In
a letter by the plaintiff himself dated 25^th May 1999 to
the programme manager of NACP, Mr Xoagub, the late Mr Wamuwi referred
to the rôle of UNICEF as follows:

“The
terms of reference which UNICEF provided for executing the programme
demanded that 31 performances be conducted. Of these 15 were to be
capacity building workshops and 16 (sixteen) to be drama
performances. My group performed accordingly…”

This
once again, was an admission of the central rôle of UNICEF and
the fact that the agreement with UNICEF was for 31 performances, not
an agreement with defendant, the Namibian Government, for countrywide
performances of 1400 schools costing millions payable by the
Government as alleged by plaintiff in his particulars of claim.

The
confusion about Wamuwi’s status

One
further puzzling feature of the confusing scenario set out by the
plaintiff Wamuwi, is that he described himself as the “Co-ordinator
of the Maximo-Zauzanda Cultural Group.” He was also described in
correspondence as the Director of the group. But in his particulars
of claim, his action is not in the name of the Maximo-Zauzanda
Cultural Group but in his name, not even as a representative of the
group. The money paid over was also for the services of the said
Maximo-Zauzanda Cultural group.

The
question which then arises is whether the plaintiff in the
circumstances was entitled to payment in his personal capacity. But
even more important, whether he could sue in his personal capacity as
was done, or should he have sued in his representative capacity on
behalf of the group?

This
issue was not raised by the parties or their counsel and it is not
necessary to decide in this appeal. However it is relevant when
considering whether plaintiff succeeded in proving an agreement
between himself, in his personal capacity, and the defendant, as
represented by the Ministers.

Kahikuata’s
opinion:

The
Court mentioned that “Kahikuata agreed that the defendant was in
breach of its agreement with the plaintiff.” Kahikuata’s opinion
was clearly inadmissible if he implied that there was an enforceable
legal contract between plaintiff and the Government and that such an
agreement was breached by the Government. Surely Mr Kahikuata has
overreached himself in making such an admission, particularly as
there is a clear distinction between mere agreements on the one hand
and contracts creating legal relations and legally enforceable
obligations on the other. Laymen, such as Kahikuata, will probably
not be able to make such a distinction, but the Court should at all
times keep such a distinction in mind.⁶

Furthermore,
in so far as a tacit contract is concerned, the party pleading such
contract must in addition to expressly alleging it, “prove
unequivocal conduct which is capable of no other reasonable
interpretation than that the parties intended to, and did in fact,
contract on the terms alleged. It must be proved that there was
agreement.”⁷

In
so far as Kahikuata expressed the opinion that there was an agreement
between plaintiff and defendant, he clearly overreached himself. And
if he intended to say that the “agreement” constituted a contract
creating legal relations and legally enforceable obligations, his
opinion was inadmissible.

The
viva voce evidence:

Mr
Frank referred to the following parts of the testimony of the
plaintiff and witnesses Xoagub and Kahikuata, in addition to the
documentary evidence, to demonstrate that no enforceable agreement
was entered into in regard to the 2^nd project.

“Evidence
of the plaintiff:

9.1 plaintiff
had to wait for approval as funding had to be obtained from UNICEF.

Record: Vol.
4, p 489.

9.2 When
an extended programme was envisaged UNICEF became involved from the
beginning.

Record: Vol.
4, p 503, 15-p 504, 15.

9.3 A
project proposal had to be given to the donor UNICEF.

Record: Vol.
4, p 503, 13-15.

9.4 A
Ms Delaney who represented donors was present at the final agreement
and the “project was supposed to be taken back to UNICEF for
financing”.

Record: Vol.
4, p 510, p 511 and p 590.

9.5 The
price per school was accepted by Ms Delaney.

Record: Vol.
4, p 524 and 589.

9.6 Plaintiff
knew the “bulk” of the money came from UNICEF and that he
would be paid by UNICEF.

Record: Vol.
4, p 525.

9.7 Plaintiff
was informed of the fact that no agreement could be entered into
without funding from donor agencies and specifically UNICEF.

Record: Vol.
5, pp 608 – 609 and 610.

9.8 Plaintiff
accepts that if UNICEF does not make funding available there will be
no agreement.

Record: Vol.
5 p 621.

9.9 UNICEF
had to facilitate the finances.

Record: Vol.
5 p 702; Vol. 6 p 769.

Witness
Xoagub

9.10 The
Ministry of Health and Social Services did not have any of its own
funds and assist in obtaining funds.

Record: Vol.
6, p 866.

9.11 The
lack of funds was known to plaintiff and hence the involvement of Ms
Delaney.

Record: Vol.
6, p 881.

9.12 The
funding had to be sorted out prior to the project commencing.

Record: Vol.
7, p 914.

Witness
Kahikuata

9.13 The
budget is submitted to the UN to acquire funding.

Record: Vol.
7, p 977-978.

9.14 It
is only where UNICEF agrees to a project that funds are made
available by UNICEF.

Record: Vol.
7, p 979.

9.15 In
respect of the initial project of July 1998 plaintiff was informed in
so many words that as UNICEF had accepted to fund that project it
could go ahead.

Record: Vol.
7, p 993.

9.16 UNICEF
can assess requests for funding and can either accept or refuse the
funding.

Record: Vol.
8, p 1112, 20 – p 1113, 5.

9.17 If
the donor does not release funds it is impossible to carry on with
the project.

Record: Vol.
7, p 1116, 1-5.

9.18 Plaintiff
knew that the funding for the project had to be from UNICEF.

Record: Vol.
7, p 568, 10-12.

9.19 Should
funding not be made available there could be no agreement.

Record: Vol.
7, p 1123, 20 – p 1124, 1.

9.20 It
was clear to plaintiff that UNICEF was the provider of funds and that
they (UNICEF) would actually pay him.

Record: Vol.
8, p 1105 – p 1106.”

The
points made by Mr. Frank in regard to the viva voce evidence
referred to are justified.

Mr
Heathcote, on behalf of respondent, attempted to overcome the damning
documentary and oral evidence, by relying mainly as the Court a
quo did, on the viva voce evidence of Kahikuata and his
assertion that the funds were available.

In
my respectful view, the Court a quo was not entitled, on the
available evidence, to find that an enforceable agreement, as alleged
by plaintiff/respondent, had come into being and that it was proved
that UNICEF was not a party to the agreement. The Court a quo
had misdirected itself in reaching such a conclusion.

In
view of this result I deem it unnecessary to decide the application
for amendments. However, I should point out that applications for
amendments on appeal would not be granted as a matter of course and
should not become a substitute and belated remedy for legal
practitioners who performed their duties negligently and/or without
the necessary diligence and expertise.

In
the result I make the following order:

1. 
   The
   appeal succeeds;

   
   

2. 
   The
   order of the Court a quo is set aside;

   
   

3. The
respondent to pay the costs in the Court a quo and on appeal
with the exception of the costs caused by the appellant’s
application for condonation for the late filing of the record, the
filing of an incomplete record and the application on appeal for
amendments to the pleading.

________________________

O’LINN,
A.J.A.

I
agree.

________________________

STRYDOM,
C.J.

I
agree.

________________________

CHOMBA,
A.J.A.

COUNSEL
ON BEHALF OF THE APPELLANT: Mr. T.J. Frank

Instructed
by: The Government Attorney

COUNSEL
ON BEHALF OF RESPONDENT: Mr. R. Heathcote

Instructed
by: Shikongo Law Chambers